(d) Laws (Continuance in Force) Order (I of 1958), Art. 2(7)—Abrogation of Constitution of Pakistan (1956)—East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), held, became operative according to its tenor after abrogation—Legal Provisions of Act were only under a “temporary eclipse” so long as Constitution of Pakistan (1956), Art. 18 remained in force—East Bengal State Acquisition and Tenancy Act. 1950 (XXVIII of 1951), Chapters 11 & V—Provide alternative modes of acquisition —Acquisition finalised by proceedings under Chapter V, before promulgation of Constitution of Pakistan (1962), of waqf and debutter properties, cannot be attacked as invalid—Constitution of Pakistan (1962), Art. 10—State v. Muhammad Mehdi Ali Khan Panni P L D 1959 SC (Pak.) 387 ref.]. [p. 203] D

(e) Constitution of Pakistan (1962), Art. 8(2), Principles of Policy, Principle No. 1—Supreme Court urged by counsel to review its former decisions pronounced after abrogation of Constitution of Pakistan (1956), involving question of validity of acquisition by East Pakistan Government of Waqf properties under East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Ss. 3 & 44—Plea, held, not justifiable in Courts under the Constitution of 1962—Responsibility for change of law laid on Legislature—Political philosophy not adequate basis for re-considering previous decisions.

Counsel arguing appeal before the Supreme Court urged the Court to review the decision in Dosso’s case P L D 1958 S C (Pak.) 533 as well as in Muhammad Mehdi Ali Khan Panni’s case P L D 1959 S C (Pak.) 387 that Fundamental Rights had dis-appeared with the abrogation of the Constitution of Pakistan (1956), the promulgation of Martial Law and the Laws (Continuance in Force) Order (I of 1958). He called in aid the provisions of Islamic Law with regard to waqfs, in this context, and put forward the proposition that God’s Law, which has been recognised even by the Constitution of 1962, must be accorded an overriding position. Consequently, he suggested, waqf properties could not be taken over by the Government under sections 3 and 44 of East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), as the action would be repugnant to the provisions of Islamic Law:

Held, that such a plea was not justiciable in Courts under the Constitution of 1962. The responsibility had been laid on the Legislature to see that no law repugnant to the Islamic Law, was brought on the statute book. The grievance, if any, therefore, should be ventilated in a different forum and not in Court. The other factors pressed into service by counsel in this context appertained more to the realm of political philosophy than law and would hardly furnish an adequate basis for reconsideration of the two previous decisions of the Court. [p. 203] E

The first point raised by Mr. Hamidul Haq Chowdhury, was that the decision of this Court in Muhammad Mehdi Ali Khan Panni’s case merely amounted to a declaration that the remedy by way of writ was barred and that the right of the appellants to retain the property in dispute, remained intact. This position is untenable. The decision in that case proceeded on the principle laid down in State V. Dosso (i). It was held therein that with the disappearance of the late Constitution and its replacement by a new legal order which excluded that Constitution, all proceedings in cases in which the validity of a law had been called in question on the basis of Fundamental Rights, embodied in the late Constitution had abated, under clause 7 of Article 2 of the Order. It was laid down clearly in that case that the Fundamental Rights had not survived the successful Martial Law Revolution. On that point there was no difference of opinion among the Judges of this Court. The minority view in that case only expressed a doubt as to whether the concluding words of clause 7 of Article 2 of the Order, had the effect to bringing to an abrupt end, the proceedings in the petitions before the High Court, commenced by the affected parties at a time when the late Constitution was in force. My Lord the Chief Justice considered in that case that the writs should not be recalled unless the judgment of the High Court was itself open to question, on the point of the relevant law’s repugnancy to article 5 of the late Constitution. After examining the position in this regard, he reached the conclusion that the High Court’s order could not be sustained.

The view that Fundamental Rights had not survived the abrogation of the Constitution, was re-affirmed by all the Judges in Muhammad Mehdi Ali Khan Panni’s case also. However, my Lord the Chief Justice, in his minority judgment, reiterated the doubt which he had expressed in Dosso’s case, as to the effect of Clause 7 of Article 2 of the Order, in the circumstances of the case. He further observed that the Fundamental Rights embodied in the late Constitution, had been deprived of their compulsive force in law, and therefore, their enforcement through Courts was no longer possible. Yet, as the Order, in terms, provided that notwithstanding the abrogation of the late Constitution, but “subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution”, to be known hence forward as
Pakistan, shall be governed as nearly as ma be in accordance with the late Constitution “, the possibility was envisaged by my Lord that the Fundamental Rights in question had not become entirely devoid of validity, but perhaps could be placed on the footing of directive principles of policy. On the basis of this reasoning, my Lord held that the proceedings for the writs, out of which the appeal in Muhammad Mehdi Ali Khan Panni’s case had arisen, did not abate by the operation of Article 2(7) of the Order. This being the position of the law, as expounded in the two judgments cited above, it is impossible to up hold the contention raised by Mr. Hamidul Haq Chowdhry, that the right of the appellants remained intact despite the abrogation of the late Constitution. If Article 18 of the Constitution was no longer enforceable through Courts, it could not be said that the alleged right based on it, continued to subsist. The fact that the order vested power in the High Courts and the Supreme Court to issue specified writs, does not lead to the inference that these writs could have reference to Fundamental Rights. It was held in the above case that these writs could hence forth operate only on laws other than the Constitution, which the Order had continued in force. [p.200-202]